Director of Social Welfare v. Lnt and Another
Read the full judgment text of HCAD 9/2020 on BabelCite. This HCAD judgment was delivered on 10 March 2021.
1. This is an application made by the Director of Social Welfare (“ Director ”) under section 5A of the Adoption Ordinance, Cap 290 (“ Ordinance ”) for an order declaring the female infant LSL (“ Child ”) free for adoption and dispensing with any consent required by section 5(5)(a) of the Ordinance.
Cited by 2 cases · Cites 5 cases
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HCAD 9/2020 [2021] HKCFI 587 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ADOPTION APPLICATION NO 9 OF 2020 ________________________
________________________ BETWEEN
________________________ Before: Hon B Chu J in Chambers (Not Open to Public) (By Paper Disposal) Date of Plaintiff’s Skeleton Submissions: 29 January 2021 Date of Plaintiff’s Supplemental Submissions: 25 February 2021 Date of Decision: 10 March 2021 ________________________ D E C I S I O N ________________________ Introduction 1.This is an application made by the Director of Social Welfare (“Director”) under section 5A of the Adoption Ordinance, Cap 290 (“Ordinance”) for an order declaring the female infant LSL (“Child”) free for adoption and dispensing with any consent required by section 5(5)(a) of the Ordinance. 2.The 1st defendant is the natural mother of the Child (“Mother”). She was born in Mainland China in December 1978, and is now 42 years old. She married the 2nd defendant, a Hong Kong resident, in Mainland in 1999 and they have two sons born in 2000 and 2009. Mother was granted right of abode in Hong Kong in 2005. As seen later in this decision, Mother was diagnosed with schizophrenia in 2005, and she returned to her maternal home in the Mainland in 2012. 3.In May 2017, Mother was found to be pregnant and had irrelevant speech by her family in the Mainland. She was brought back to Hong Kong. In June 2017, she was compulsorily admitted to the psychiatric ward of Tai Po Hospital and had remained there since then. 4.Mother gave birth to the Child in August 2017 at the Prince of Wales Hospital but she was unable to report any detail about the circumstances leading to her pregnancy, and the identity of the birth father of the Child remains unknown. 5.On 15 September 2017, a Care and Protection Order for the Child was made by the Juvernile Court appointing the Director as her legal guardian, and since 4 April 2018, the Child has been entrusted to the care of a foster home in Tuen Mun. 6.As the 2nd defendant was legally married to Mother at the time of the birth of the Child, he is presumed to be the Child’s legal father. 7.However, according to the 2nd defendant, he had no contact with the Mother over the past few years. He denied any blood relationship with the Child and strongly refused to be her legal guardian. 8.On 18 April 2018, the 2nd defendant had signed a Form 4A, relinquishing the parental right and giving his consent to free the Child for open adoption. 9.The present application is made by the Director under section 5A of the Ordinance on the grounds that the Mother is incapable of giving her consent, that the 2nd defendant has relinquished his rights, if any, over the Child and that in all circumstances of this case, it is in the best interest for the Child to be freed for adoption. 10.Senior Government Counsel, Ms Carmen Siu, represented the Director in this application. The relevant provisions in the Ordinance 11.Section 5A of the Ordinance provides for freeing an infant for adoption as follows:
12.Section 5 (5) has set out that:
13.Further, section 6 provides that :
Queries raised by this Court 14.Upon considering the 1st Skeleton Submissions from Ms Siu on behalf of the Director, as there were no submissions made in relation to Order 80 rule 6 of the Rules of High Court (“RHC”), this Court raised the following queries on 3 February 2021 :
15.This Court then directed the application be dealt with on papers. Mother’s mental incapacity 16.The Director has somehow managed to obtain medical reports on Mother’s condition notwithstanding that Mother appears to have been incapable of giving her consent. 17.Anyway, according to a psychiatric report dated 10 January 2019 from Dr Wong Ching Yi (“CY Wong”), then the Resident and now the Associate Consultant of the Department of Psychiatry, Tai Po Hospital, and who is on the List of Approved Doctors for the purposes of section 2(2) of the MHO, Mother was first known to the mental health service there in 2005 and presented with various psychotic symptoms including auditory hallucinations, persecutory delusions, disturbing and aggressive behaviors eg threatened to kill her family, damaged neighbour’s door with a chopper etc. She had 3 past psychiatric admissions between the year of 2005 to 2010, but she defaulted psychiatric treatment and follow up since March 2011 and went away to the Mainland in 2012. 18.According to Dr CY Wong, Mother’s maiden family reported her to have fluctuating mental state with persistent psychotic symptoms since then, and that she had repeated disorganized behaviours in public and frequently absconded from home and did not return home sometimes for weeks to month. Her elderly parents were not able to supervise her condition, and that Mother had no contact with her husband and 2 sons in Hong Kong during that time. 19.Dr CY Wong reported that around May 2017, Mother’s parents found out that she had become pregnant, and Mother could not provide any information concerning her pregnancy due to her prominent psychotic symptoms. Finally her family successfully brought her to Hong Kong for psychiatric treatment in June 2017 and that Mother was then admitted to the psychiatric ward in the Tai Po Hospital. Since 9 June 2017, Mother had been an in-patient in the psychiatric ward in Tai Po Hospital except her brief transfer to the obstetrics unit and a trial stay in a half-way house between 9 to 31 October 2018, but was soon re-admitted to the Tai Po Hospital as she could not complete the trial stay at the half-way house . 20.Mother has remained at the Tai Po Hospital since her re-admission on 31 October 2018. 21.Dr CY Wong was asked by the Director to examine Mother on 20 November 2020. In a medical report dated 27 November 2020, Dr CY Wong reported that Mother’s psychotic symptoms only showed limited improvement, and although she showed no more behavioural act out of psychotic symptoms, she continued to harbor prominent positive symptoms of schizophrenia, residual cognitive and negative symptoms of schizophrenia with cognitive inflexibility. 22.Dr CY Wong reported that when she tried to discuss the welfare issue of the Child with Mother, Mother became increasingly dissociated and preoccupied, and Mother insisted that her “USA Army husband” told her that he had brought the Child to USA in 2017, and started to give increasing irrelevant speech secondary to her disorganized thoughts. Dr CY Wong opined that according to Mother’s progress and latest condition, Mother had limited ability to comprehend the significance and meaning of relinquishment procedures of her daughter and was not mentally fit for discussing childcare plan and for giving consent to relinquish her parental right. 23.Dr CY Wong reported that despite trials of “multiple antipsychotics”, Mother’s psychotic symptioms only showed limited improvement and never achieved remission, and in view of Mother’s treatment-resistant psychotic symptoms, “clozapine” was also started. However, Mother’s psychotic symptoms only showed limited improvement. 24.Dr CY Wong was of the opinion that Mother is incapable by reason of mental incapacity as defined in the MHO of managing and administering her property and affairs. To the question as to Mother’s prospects of mental recovery, Dr CY Wong’s response was “Guarded”. 25.The Director has obtained a further medical report/certificate dated 22 November 2020 from Dr Wong Yuen Wing (“YW Wong”), the current Resident at the Department of Psychiatry, Tai Po Hospital. Dr YW Wong stated that Mother was diagnosed to have schizophrenia. She gave similar opinions as Dr CY Wong. Dr YW Wong opined that in view of Mother’s limited mental capacity, risk to self and others, and limited social support in Hong Kong, supervised living is recommended for Mother, and that as Mother was still undergoing active psychiatric treatment, there were no discharge plans for Mother at the date of the report. 26.Similarly, Dr YW Wong reported that Mother was offered multiple antipsychotic treatment but Mother showed limited improvement and Mother was given “diagnosis of treatment resistant schizophrenia” and that Mother had started to receive clozapine, with augmentation with multiple antipsychotic tried. Although Mother had less disorganized behavior in ward, she still harboured fixed delusion and cognitive impairment, and Dr YW Wong opined that the prospect of Mother’s mental recovery to be “not optimistic”. 27.Dr YW Wong concluded that Mother is incapable by reason of mental incapacity as defined under the Mental Health Ordinance, Cap 136 (“MHO”) of managing and administering her property and affair; and is mentally unfit for giving consent to relinquish her parental right in respect of the Child. 28.Having read those medical reports, I am satisfied that Mother is a “mentally incapacitated person” within the meaning of MHO. Whether a guardian ad litem should be appointed for Mother 29.In light of my above finding, Mother is clearly a “person under disability” as defined in Order 80 rule 1 and to whom Order 80 applies. 30.First of all, as Mother is a party in these proceedings and is named as a defendant, service of any documents will have to be effected under Order 80 rule 16 of RHC. 31.In the present case, service of the present originating summons and supporting affidavit together with all required accompanying documents including a prescribed form of the acknowledgment of service of the originating summons was effected on Mother on 15 September 2020 by the process server leaving the same with a ward staff at Ward 1A, 1/F, Wing D of the Tai Po Hospital. 32.Thus, there has been service effected under Order 80 rule 16 (2)(b) of RHC. 33.Order 80 rule 2(1) provides, amongst other things, that a person under disability may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem. 34.As set out in paragraph 80/2/2 of the Hong Kong Civil Procedure, 2021 Ed, Volume 1 (“HKCP”), the words “may not” in Order 80 rule 2(1) are equivalent to “shall not”. 35.In the present case, there has been no acknowledgment of service filed by the Mother or any guardian ad litem on her behalf. 36.Order 80 rule 3(2) states as follows:
37.The situation set out in Order 80 rule 3(4) or (5) is not applicable in the present case. Order 80 rule 6 (1) of RHC states as follows:
38.The scope of Order 80 rule 6 is set out in paragraph 80/6/1 of the Hong Kong Civil Procedure 2021 Vol 1 (HKCP) as follows:
39.Mr Siu submitted that the Director had not made such an application in these proceedings for essentially 3 reasons as set out in her Skeleton Submissions, namely[1] :
40.Further, Ms Siu submitted that this Court has power to proceed with the Director’s application despite no application for the appointment of a guardian ad litem has been made and that this Court has wide general powers under Order 2 rule 1 to cure irregularities, and the failure to comply with Order 80 rule 2(1) was an irregularity: Ng Hong Ki and Leung Fong Kiu [2012] 1 HKLRD 435. 41.In the Ng Hong Ki case, steps in proceedings were taken and summary judgment was granted to the plaintiff before defendant’s lack of capacity due to disability under Order 80 was raised and it was held that the court had power to regularize position retrospectively. 42.I accept that the failure to comply with Order 80 rule 6(1) is an irregularity. I further accept that this Court has power to regularize the position retrospectively, and it is not this Court’s intention to direct the Director to start all over again. This however does not mean that it is not necessary to appoint a guardian ad litem for Mother at the present stage of these proceedings when this Court is considering what order/s to make in respect of the Director’s application. 43.It has been held in the Ng Hong Ki case that the court is not bound to appoint a friend or guardian ad litem even if the court is satisfied that the person is under disability and that the court still needs to consider if the appointment is beneficial to that person and if the claim is obviously vexatious, no purpose will be served by the appointment. Likewise if the defence is obviously without merit, the court might not appoint a guardian. In this respect, Kwan JA had referred to paragraph 63 of Ho Po Chu v Tung Chee Wah [2006] 3 HKLRD 553, [2007] HKCA 23, CACV 206/2005, and applied what was said therein. 44.As pointed out by the Court of Final Appeal in Moral Luck Finance Limited v Law Kin Leung (2015) 18 HKCFAR 343, FACV Nos 5&6 of 2015, the focus of Kwan JA’s judgement in Ng Hong Ki was on whether the judge below should have set aside the order for summary judgment since the proceedings had been conducted without a guardian ad litem and so were in breach of Order 30 rule 2(1), it being submitted that the substantive steps taken before the appointment of the guardian ad litem were nullities, and that her Ladyship was not concerned with deciding whether or on what evidential basis a guardian ad litem should be appointed as one was already in place[2]. 45.Further, as to the Ho Po Chu case, in that case, the plaintiff’s action had been struck out by the Registrar, and on appeal by the plaintiff against the Registrar’s decision, Deputy Judge B Fung, as he then was, had stayed the action by means of a “debarring order” he issued against the plaintiff under Order 80 rule 2 of RHC and the defendants then appealed against the “debarring order”. On further appeal to the Court of Appeal, as pointed out by Yuen JA in her judgment, the issue in the appeal is essentially whether a decision under section 10 of MHO (after an inquiry under section 7 of Part II MHO procedures) is a pre-requisite to a debarring order under Order 80. 46.Yuen JA came to the conclusion that the court should adopt a flexible approach to the evidence of mental incapacity under Order 80 and where mental incapacity is relevant because a debarring order is sought, the court would expect clear medical evidence to prove the mental incapacity because the effect of a debarring order is to restrict a person’s direct access to the court. However, Yuen JA had said that where mental incapacity is relevant because an action is started by the next friend (or defended by the guardian ad litem) of a person said to be suffering mental incapacity and that act is obviously for the person’s benefit, the court would not initially require formal medical evidence, although it would of course be prudent for the next friend or guardian ad litem (and the solicitor acting under his instructions) to have medical evidence available before the event in case of challenge[3]. 47.In paragraph 63 thereof, Lam J, as he then was, made observations[4] as to the options of the court when it was faced with a litigant who was not represented by a next friend and there was suggestion that he or she might suffer from mental incapacity. The Learned Judge observed that the court had 4 options - (i) striking out the claim if it is obviously vexatious; (ii) if mental incapacity is clearly established and no dispute by the litigant as to his mental incapacity, and action is not vexatious; (iii) if mental incapacity is disputed by the litigant; and (iv) if the evidence as to mental incapacity is inadequate; and that it is a matter of discretion for the court to decide which is the most appropriate option to adopt in the circumstances of the case. 48.It would thus appear that the above observations made by his Lordship were made in circumstances such as those in the Ho Po Chu case, namely in a case when the court had to consider whether to strike out the plaintiff’s claims on application by the defendant on the ground that those claims were vexatious, and the mental capacity of the plaintiff was called into question. 49.As stated in paragraph 80/2/2 of HKCP, having referred to what was said by Kwan JA in the Ng Hung Ki case :
50.In the present case, as set out earlier, there has been sufficient evidence in relation to Mother’s mental incapacity, and the Court is satisfied that Mother is a mentally incapacitated person under the provisions of MHO and a person under disability under Order 80. 51.There is no evidence at this stage that Mother intends to put up any unmeritorious defence or any defence. The issue is really whether it is of benefit to Mother for a guardian ad litem to be appointed for her at the present stage of these proceedings. 52.As set out earlier, one of the Director’s reasons for not making an application under Order 80 rule 6 is that the guardian ad litem will be unable to ascertain Mother’s will or take instructions from her. However, in my view, this will in fact be a reason as to why Mother may need a guardian ad litem for her benefit and protection. 53.As to who may be next friend or guardian ad litem, as set out in paragraph 80/3/8 of HKCP, the Court generally expects a next friend to be a substantial person, and, as in the case of a guardian ad litem, it is desirable that he should be a relation, connection, or friend of the family and not a mere volunteer. A guardian of the person or testamentary guardian may be appointed; or the Official Solicitor[5]. 54.Further, it is stated in paragraph 80/6/8 of HKCP that where no other person is willing to act, the Official Solicitor is usually appointed. 55.Amongst Ms Siu’s authorities is the case of RP v Nottingham City Council and the Official Solicitor (Mental Capacity of Parent) [2008] EWCA Civ 462 before Thorpe and Wall LJJ of the Court of Appeal in England. The case concerned a child born prematurely with many serious medical condition and the local authority brought care proceedings against the mother because of her inability to comprehend the child’s medical problems. The child had remained in hospital for some time and then discharged with serious disabilities into the care of foster parents. The mother’s solicitor raised the possibility that the mother might lack the capacity to litigate and subsequently the Official Solicitor was appointed as the Mother’s litigation friend. 56.In that case, the local authority’s final care plan, supported by the child’s guardian, was for adoption outside the family. At the hearing, the Official Solicitor communicated mother’s belief that she would be able to care for the child, but as her litigation friend, the Official Solicitor concluded that he could not oppose a care order or a placement order, and that the mother was not capable of giving consent to the making of the placement order. The judge then made both care and placement orders for the child. The mother appealed. The local authority asked the court for guidance on the good practice in cases in which a parent’s capacity to litigate was in question. 57.The following was set out in the holdings (4), (5) and (6) of the headnote of the report[6]:
58.It was further held per curiam in the above case that a litigation friend, whether the Official Solicitor or otherwise, could not become involved unless and until proceedings were issued, but the question of adult capacity to give instructions needed to be addressed at the earliest opportunity: the local authority would be expected, in the pre-proceedings phase of the case to be on the alert for the possibility that a parent might be a protected person, lacking the capacity to give instructions in the proceedings. 59.What is also helpful in the above case was the Opinion given by Mr Peter Jackson QC which was annexed as Annex B of the reported judgment on the “Role of the Official Solicitor in cases under the Adoption and Children Act 2002”. As pointed out by Mr Jackson, there are broadly two relevant categories of parents:
60.As set out by Mr Jackson in his Opinion[8], the general duty of a litigation friend is the same in each of the above categories and as set out in the Practice Direction[9]. 61.In England, it is now stated in paragraph 2.1 of the Practice Direction 15A which supplements Family Procedure Rules Part 15:
62.I will not set out all the contents of the Opinion of Mr Jackson or what was held by Wall LJ in his judgment in the case of RP. Suffice to say, in the present case, Mother seems to fall into the category of parents who lack capacity both to consent and to litigate. There is nothing in the case of RP or in Mr Jackson’s Opinion to indicate that those parents falling into this category of parents would not need a litigation friend or a guardian ad litem, or that appointing a guardian ad litem would not be of benefit to this category of parents. In fact, on the contrary, the appointment of a litigation friend for such category of parents in cases under the Adoption and Children Act 2002 would be a proper course. 63.I do not agree with Ms Siu’s submission that the appointment of a guardian ad litem for Mother would be merely superficial, ie accepting service on behalf of Mother and accepting that she is incapable of giving her consent to adoption, or that the Official Solicitor is in no better position than the court to assess the mental capacity of Mother from the available evidence. The Official Solicitor is an Officer of the Court and upon appointment by the Court, he has to carry out his duties as set out in Part 1 of Schedule 1 of the Official Solicitor Ordinance, Cap 416, to act as guardian ad litem or next friend to any person under a disability of age or mental capacity, in proceedings before any court. As seen in the case of RJ, there may be steps which can be taken by him or at least try to be taken by him, and to present the Court with his objective assessment of the Child’s welfare and his independent views and submissions. 64.The Official Solicitor has indicated in his letter dated 29 January 2021 that in general he would consent to be appointed guardian ad litem if satisfied that (1) the defendant in question is a person under disability within the definition of Order 80 and the circumstances of the case falls within the parameters of the relevant statutory provisions governing the appointment; (2) there are no other person suitable and willing or able to act, but before accepting appointing, he would seek an undertaking from the plaintiff to indemnify the Official Solicitor for his costs. 65.I note that the Director’s position is that he is unable to mobile funding to cover Mother’s legal costs, nor does Mother have any sufficient funds to cover such legal costs, as set out in the 3rd affidavit filed on behalf of the Director. 66.However, as the Mother has limited means, consideration can be given as to whether an application for legal aid can be made on her behalf by the guardian ad litem. 67.Although the Official Solicitor seemed to take a similar view that it might not be appropriate for the Official Solicitor to step in and take up Mother’s case, as the Official Solicitor has no means to ascertain the real intention of Mother as to whether she consents to the adoption of the Child, as said earlier, the question to consider is whether the appointment will be of benefit to Mother, who is the “protected person”. As seen earlier in the RP case, whether a parent is capable to form a view or not, there may still be a role of the Official Solicitor to play. 68.As recognized by the Director and by the Official Solicitor, it is a serious step for a public official to take part in proceedings proposed to lead to a person relinquishing her parental rights. It is exactly for this reason and because this is a serious matter, namely for a mother to have her child removed from her for adoption when she is not in a condition to express views, that the Mother needs protection in these proceedings. As for how the Official Solicitor’s duties can be carried out in such a case, the Official Solicitor may find assistance in the judgment of Wall LJ in the case of RP and what was set out in the UK Official Solicitor’s statement in that case and in Mr Jackson’s Opinion annexed thereto. Conclusion and Order 69.Having regard to all above said, I have come to the conclusion that a guardian ad litem should be appointed for Mother in these proceedings, and that if there is no other relative or family member who is willing to so act, then the Official Solicitor should be appointed for the Mother. The guardian ad litem is to lodge his independent report and submissions to this Court within 2 months. The Director may lodge further reply submissions within 14 days thereafter. The Director’s application under section 5A of the Ordinance will be dealt with on papers unless otherwise directed. I make no order as to costs. 70.I authorize this anonymised judgment to be uploaded and published on the Legal Reference website, unless written objections with reasons are received within 7 days hereof.
Ms Carmen Siu, Senior Government Counsel, Department of Justice, for the Plaintiff Director of Social Welfare 1st Defendant absent 2nd Defendant absent [1] At paras 11-13, of Ms Siu’s Supplemental Skeleton Submissions, 25 February 2021 [2] At para 41 [3] At para 52 [4] See para 62 [5] In paragraph 80/3/8, pg 1565; the case referred to in the HKCP is Re W, W v M [1907] 2 Ch 557 at 568 but in that case the Official Solicitor was directed to be next friend pro hac vice t to issue a summons on behalf of the wards [6] At pg 1517 [7] In the case, the Official Solicitor had produced a statement of his practice, including advice from leading counsel, his file on the case and the file kept by the mother’s solicitors who had been retained by the Official Solicitor after his appointment. A statement of the Official Solicitor, the Official Solicitors’ Capacity Certificate and Notes for Guidance and the advice from leading counsel as to role of the Official Solicitor in cases under Adoption and Children Act 2002 (Annex B) were attached to the reported judgment [8] At para 4 [9] The footnote referred that the Practice Direction on Litigation Friends , para 2.1, borrowed from PD 21 of the CPR; It appears to be similar to para 2.1 of the Practice Direction 15A – Protected Parties which supplements FPR Part 15 |
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